Child Porn Offenders and the Sentencing Process Part One: Recidivism and Escalation

In previous postings to this site, I have written about the differences between sexual addiction and sexual offending, the various types of sexual offenders, the treatment of sexual offenders, and therapist reporting requirements when dealing with sexual offenders. However, I have for the most part left a crucial aspect of this therapeutic relationship unaddressed – advocating for (or against) sexual offenders (in particular, child porn offenders) in the sentencing process.

The simple and undeniable truth about child sex offenders and the legal system is that punishments have escalated rather significantly in recent years. From 1994 to 2007, for instance, the mean sentence in federal child pornography cases rose from 36 months to 110 months.[i] For the most part, this escalation occurred because of changes to federal sentencing guidelines – mandates enacted in response to a combination of media misrepresentations, most notably over-the-top reality TV shows like To Catch a Predator, and dubious research (i.e., the Butner Study, discussed below).

Before continuing, I want to make it clear that I do not in any way sanction the creation, distribution, or use of child pornography, or any form of hands-on sexual offending. These acts cause tremendous emotional, psychological, and sometimes physical trauma to the children who are victimized. There is no viable excuse for these crimes, and perpetrators should absolutely be dealt with appropriately – required to undergo clinical assessment and treatment, and to face suitable legal sanctions.

I also want to make it clear that not all child porn offenders are the same. For instance, an individual who searches out and looks at prepubescent child porn in a dedicated way differs significantly from the person who searches for (or simply stumbles across) teen imagery and finds it arousing. And, just so you know, a LOT of people are searching for teen imagery. In fact, one study that collected and analyzed more than 400 million Internet searches (via Dogpile.com, a meta engine combining search results from Bing, Google, Yahoo, and the like) found that the most commonly used adjectives in sexual searches were variations of the word “young,” and that the most commonly searched-for specific age was 16.[ii] So yeah, there it is.

Now back to my commentary on sentencing. Generally speaking, the rationale for tougher (and oftentimes less flexible) child porn sentencing laws is based on the (mistaken) belief that if a person is viewing child pornography, a hands-on offense is sure to follow. For a while, proponents of these stricter sentencing statutes backed their arguments by citing the dubious findings of the Butner Study. This nonscientific, non-peer reviewed research, co-authoredby a US Marshall, examined 155 men convicted of child porn offenses, finding that many of them also admitted to a previously undisclosed and unprosecuted hands-on offense.[iii] However, because of its inherent bias and some blatantly obvious design flaws, more equitable researchers believe (and have stated rather vociferously) that the Butner Study does notdefinitively establish a causal relationship between the viewing of child pornography and contact offending.[iv]

In truth, more evenhanded studies on child porn use and hands-on offending typically reach a very different conclusion. Much of this research has been conducted by renowned Canadian scholar Michael Seto. In a 2005 study, Seto and his colleague, Angela Eke, examined 201 convicted child porn offenders, seeking risk factors for future offending. Unsurprisingly, they found that both recidivism and escalation into hands-on offending are relatively predictable among this population.[v] The surprise was that the most likely indicator for both is a prior history of other criminal offenses rather than a sexual attraction to minors. In other words, Seto and Eke found that a child porn user’s attraction to minors is not a primary factor in future sexual offending (of any type). However, a history of criminal behaviors in general – perhaps indicating an ongoing propensity to disregard laws – greatly increases the likelihood of reoffending with child porn and/or a hands-on sexual offense. (It also corresponded with an increased likelihood of non-sexual offending.)

Seto and Eke’s groundbreaking findings have been backed up and expounded upon by other scientists, most notably in a 2009 European study conducted by Swiss and German researchers.[vi] This study found that among people who had not previously committed a hands-on sexual offense, the viewing of child pornography – even the extensive viewing thereof – was not, by itself, an indicator of future hands-on offending potential. In fact, only 1 out of 220 test subjects without a prior contact offense went on to commit one. After publication of this study, lead researcher Frank Urbaniok told members of the press that “the motivation for consuming child pornography differs from the motivation to physically assault minors.”

Thankfully, the Butner Study is now largely discredited. Nevertheless, the unforgiving laws it helped to create remain in place. Essentially, our current legal system treats all child porn offenders as if they are the same, even when their motivations for use and their likelihood of committing a hands-on offense in the future are very different. In other words, in today’s world the fact that two men arrested for child porn use may have engaged in this behavior for very different reasons and may therefore have very different odds of committing a hands-on offense in the future matters little in the eyes of our “lock them up and throw away the keys” judicial system.

What is missing, in both our courts and in the public discourse on child sexual offending, is differentiation between offenders who use child pornography to satisfy their pedophilic (prepubescent) or hebephilic (adolescent) attraction to children, but don’t and almost certainly won’t act on that attraction in real life, versus the person with a similar arousal pattern who engages or is likely to engage in contact offending.

In short, the aggressively punitive attitude of the media-manipulated general public and much of the legal community is not always the best approach, particularly when it comes to lower-risk non-contact offenders. Nevertheless, the general public and the legal system are nearly always predisposed toward leaping to the worst possible conclusions about every child porn user. As such, it is up to psychotherapists to seek out and present a realistic understanding of who a child sex offender is, what motivates that individual, whether he or she is likely to respond positively to treatment, and his or her propensity for recidivism and/or escalation into contact offending. In other words, we, as therapists, must help the judicial system understand that some child porn offenders have enough emotional and psychological awareness to not act on their sexual feelings beyond the viewing of illegal imagery, and, for these individuals, treatment may be a viable sentencing option – perhaps preferable to lengthy (and largely punitive) incarceration.

Put very simply, child porn offenders can and absolutely should be accurately evaluated prior to adjudication for their specific sexual arousal patterns, impulse control, psychopathy, motivation, and capacity to respond to appropriate treatment. When these evaluations occur, and when the results of these evaluations are presented and effectively integrated at sentencing, the rates of recidivism and escalation can be greatly reduced, and more meaningful punishments can be meted out. In my next posting to this site, I will discuss the basics of conducting these psychosexual evaluations, and how to best present them in legal settings.

Robert Weiss LCSW, CSAT-S is Senior Vice President of Clinical Development with Elements Behavioral Health. A licensed UCLA MSW graduate and personal trainee of Dr. Patrick Carnes, he founded The Sexual Recovery Institute in Los Angeles in 1995. He is author of Cruise Control: Understanding Sex Addiction in Gay Men and Sex Addiction 101: A Basic Guide to Healing from Sex, Porn, and Love Addiction, and co-author with Dr. Jennifer Schneider of numerous books, including Always Turned On: Sex Addiction in the Digital Age and Closer Together, Further Apart: The Effect of Technology and the Internet on Parenting, Work, and Relationships. For more information you can visit his website,www.robertweissmsw.com.

[i] Stabenow, T. (2008). Deconstructing the myth of careful study: A primer on the flawed progression of the Child Pornography Guidelines. Office of Defender Services/Training Branch, Administrative Office of the United States Courts.

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